Cohabitation: The Tender Trap

Are you living with a lady? Thinking about maybe living alone or moving in with a different lady? Before you tell your roommate to start checking the apartment listings, you'd better study the new rules of the cohabitation game.

For example, you probably don't know that you may have to give her half of everything you accumulated while she was living with you. You may even find that you owe her alimony. How about this for a surprise: You may have to pay her a "salary" for all the time she was with you.

You think the business world is rough? Wait until she files for divorce. You may end up trying to prove that you were never married--your word against hers.

Are you married--officially, that is? Do you keep a companion on the side? You may be an unwitting bigamist. Your wife could sue you, your ladyfriend could also sue you and the state could finish you off with a criminal prosecution.

Are you married but living with someone else? The "else" could be accumulating the same rights your wife has. Possibly more.

Hold on, you say? We've got you in shackles (continued on page 120) Cohabitation (continued from page 115) already and you haven't even committed a crime (at least none you know of). As they say, ignorance of the law is no excuse. Let's start from the top. If you're single and want to enjoy a lovely roommate, the courts are now proclaiming that she has a right to some of the money and property you acquire during the time she lives with you. A judge may also decide that you have to pay her money for the value of her time spent as your cook, housewife and companion.

Perhaps an example will help: A few years ago, you met Michelle and so enjoyed her company that you asked her to move in with you. You came to depend on having her around all the time. One night, as you were falling asleep, blissfully drained, you mumbled something about her going along on your next business trip. She couldn't get away from her job, she said. You vaguely remember saying, "Fuck your job. I'll take care of you." There followed those peaceful years when she took care of your house, traveled with you, entertained your business associates and generally enhanced the tranquillity of your life. But you change and inevitably you met another lady who better suited your needs at the time. Exeunt Michelle. Enter the new lover. Michelle asked for help while she reentered the wage market. You gave her a little money until you thought she had had enough time to find a job. And that should have ended that chapter of your life, right?

Wrong. Change the facts a little and you have the case involving Lee Marvin and Michelle Triola. Lee was married for the first two years that he lived with Michelle, but he didn't marry her after his divorce. Nevertheless, Michelle found it more socially convenient to have her last name changed to Marvin. After six years, Lee married his high school sweetheart. He gave Michelle support money for over a year, during which she found it impossible to resume her lapsed career as a singer-entertainer. Then Michelle filed suit, claiming half of everything Lee had earned while they'd been living together. She also wanted permanent support payments. Lee, she said, had promised her everything if she would just be his lady.

At first, she couldn't find an attorney to take her case; when she did, she ran into the unsympathetic trial and appellate courts. Her final appeal was to the most prestigious state court in the land--the California Supreme Court. Armed with brilliant briefs, attorney David M. Brown argued for the rights of all unmarried couples who live together. On December 27, 1976, Michelle won. The old rules of the living-together game were blown apart.

Here are the new rules:

1. Sin, morality and adultery are out.

2. The gender of your roommate is unimportant.

3. If you and your lady have agreed that she has any rights to your property, the courts will enforce the contract.

4. If the courts can infer from your conduct that you two have any kind of implied or tacit agreement, they will enforce that, too.

5. If an unmarried couple has no express, tacit or implied agreements, it is up to judges to examine the expectations of the parties and then equitably divide property acquired during the relationship.

6. If you lead her to believe that she is not just donating her time working in your home or in your business, the courts will probably award her a reasonable salary.

7. Judges may also infer that you are obligated to support her after she moves out.

8. The courts will not enforce any agreement for payment of sexual services--that's prostitution.

When do the rules apply to you? When you cross the line between "just dating" and "being involved," not a very clear distinction.

You're at the disco. There's a lithe female animal spinning sinuously in the strobe lights. Soon you're dancing with her. Afterward, at a table, you're both laughing and chatting. Later, you intertwine those perfect bodies in love. That's a casual encounter; no legal problems.

You go to work the next day, but your mind keeps focusing on her. You go out with her again. She's tall and sensuous and, my God, you can talk with her for hours. How did you get so lucky? And now it has to be weekends away, playing with her, listening to her, loving with her. You're not seeing much of your home anymore (or she's not seeing much of hers). You're doing everything together. You may have crossed the line.

Generally, you're all right in a straight dating situation. But if you start making promises to each other concerning shared goals, if you begin investing time and money together for a common purpose, that's not just dating. The courts will treat you like any two people who have made an agreement. That is contract law.

Here's an example of conduct that may amount to a contract while you're still dating:

You find that "almost" dream investment, a run-down apartment house with tremendous potential. All it needs is a little paint and plumbing and landscaping. She may or may not put some money into it, but you two spend all your spare time fixing it up--painting stairs, with dirty hands, big smiles, eating cheese sandwiches while you lie on the floor. You never talk about the implications of what you're doing, but you can't say that she's just donating her time. She may have some expectations, may be entitled to the reasonable value of her services in helping you renovate the building. Or she may have a right to some percentage of the profits from the increased rental income. This sort of thing normally happens after you're cohabiting, but it doesn't matter that you're not. At least with respect to this project, the courts may see your conduct as indicating an implied partnership, joint venture or the like.

What happens when you move in together? One thing is clear: All the cases concerning cohabiters say that neither party acquires any rights from the mere fact of their living together. If they live together in a vacuum: They don't speak to each other. Each pays his own way. Each does his own dishes and laundry and buys and cooks his own food. Each does nothing for the benefit of the other.

Well, if that's cohabitation, you can have it. No two people live together without having some expectations even before they move in. You can't spend much time with a lady who's sharing your home before you have tacit, implied or expressed agreements concerning the conduct of your joint lives. She helps you--you help her. It's a way of life. You have definitely crossed the line. What the Marvin case did was recognize human nature and the fact that we all live in an economic world. It said that a court must analyze all the circumstances involved in each cohabitation relationship and then, with respect to money or property, equitable fulfill the expectations of the couple. The male (and it's still usually the man) can no longer keep all of the union's property when the inevitable breakup comes.

So, you see, the new rules become applicable not because you live with that lady but because of how you two share your lives. You can have two, ten or just one home. You can be married to someone else. The Marvin ruling applies because of the expectations of the partners. (continued on page 157) Cohabitation (continued from page 120) If she structures her life to fit in with yours--either because you want her to or because you allow her to--they apply.

Let's explore what that means in economic terms. Michelle and Lee represent the normal factual setting of the living-together couple: The man works for wages and the woman works at home for the man. When the sweetness ends, the property and income accumulated during the alliance will probably be divided equally between you (absent a contract to the contrary); you may have to support her until she can re-enter the job market; or you may just owe her about $13,000 for each year that she was your housemate, companion and general factotum.

Now, you may be thinking that because you earn $25,000 and she brings in merely $12,000 and you have a pooling contract, you are entitled to receive twice as much as she does when the property is divided. Not so. To the court, she's been assuming the role of a housewife also. Economists estimate the value of a homemaker's services in excess of $13,000 a year. The total of her income and services puts her up there in the 50-50 situation.

The reason a housewife's services are so valuable is that they free you from expenses for a maid, driver, cook, hostess and party caterer, to name a few. Also, the lady's services are seen as a direct contribution to your career and income capacity--a man living with a woman in a stable relationship is less suicidal, less criminal and healthier physically and mentally.

Of course, if the two of you are sharing the homemaking chores, you merely add one half of the value of those services to your respective incomes and divide the property according to the percentages you arrive at that way.

Naturally, these examples don't cover all situations. Apply the basic principles to your own setup. But if you have a written contract, it will govern.

Contracts. Percentages. Reasonable value of services. Good God, all you want is to have an extended sexual encounter with the fringe benefit of having her live with you. If that's all there is to your relationship, you may be all right for a while; but when the relationship goes on and you set up "housekeeping," the new rules will apply to you.

And the Marvin guidelines will apply to you. Don't think that you're safe just because you don't live in California. Michelle and Lee weren't the first couple to live together and California isn't the first state to recognize the rights of unmarried women. Quietly, beginning in 1909, state after state has been enforcing all sorts of oral and written contracts between cohabiters--even where the relationship itself has been illegal, immoral or adulterous.

Several decades ago, couples held themselves out as man and wife because of social pressure. But to the courts, it makes no difference whether or not the couple have been known as Mr. and Mrs. when a division of property is at issue.

In 1909, Margreth Williams strode in front of the justices of the Texas Supreme Court, declaring that her old man had said that if they combined their labor, skills and earnings and bought a ranch, she would own half. She admitted that she was the backup while he went out and earned the actual bread to buy the place, and she said she had never actually contributed a cent to the purchase price. She stared them straight in the eyes and said, "A promise is a promise and I want half of that ranch." Margreth got her half. Even back then, a woman's services were equal to a man's when the parties agreed to pool their efforts. Does that remind you of the Marvin ruling? It should. That case was brought to that court's attention.

In the years that followed, many other states enforced those oral promises that nobody thought he had to keep: Arkansas (1911), Minnesota (1921), South Dakota (1927; in that case, they also gave the woman temporary "alimony"), Tennessee (1932), Delaware (1934), California (1943), Florida (1947), Wisconsin (1947), New York (1950), Arizona (1952), Idaho (1955), Washington (1957), Vermont (1960), Louisiana (1966), North Carolina (1969). In 1975, the Michigan Supreme Court even went so far as to give a female workman's-compensation survivor benefits just because she had been living with a man.

But wait, you say, don't a large number of states that find cohabitation either illegal or against public policy still refuse the lady any interest in your property? Yes, that's true.

States such as Louisiana have statutes that deny, in effect, only the female any rights arising from nonmarital unions (however, in 1966, one court found a way around the statutes). But by 1969, law-review articles began to attack the validity of those statutes because they discriminate against a woman who chooses an alternate lifestyle. David Brown's briefs collect the United States Supreme Court's constitutional decisions on the subject. Those cases make it clear that statutes such as Louisiana's will fall under constitutional attacks.

For example, Michelle's petition said:

The distinction made by California between married and nonmarried relationships raises serious constitutional questions. The United States Supreme Court has stated on more than one occasion that family life is a uniquely private area in which individual decisions are protected against governmental instruction. The nonmarried family can be presumed to have all of the characteristics that make the married family unit constitutionally protected: They involve fundamental decisions which determine the character of a person's life; they are of a uniquely personal nature; they often implicate profound human relationships; and they generally center around the home. If an individual has a fundamental right to structure his own home life and decide with whom he wishes to live, governmental action or inaction which seeks to place unnecessary burdens upon the exercise of such right would appear to require compelling justification.

Couples recently have been found to have constitutionally protected rights to privacy and freedom of association with which neither the Federal nor the state government may interfere. These rights are embodied, among other places, in the due-process and equal-protection clauses of the U. S. Constitution. And while it is true that the present U. S. Supreme Court is somewhat retarded in its thinking, reliance need not be placed on it. Most states will follow the reasoning and example of California and find "independent" state grounds for giving cohabs protection in order to prevent the Federal Supreme Court from having a say in the matter.

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Nobody knows how many people in the U. S. are cohabiters holding themselves out as man and wife. What is known from Census Bureau statistics is that between 1970 and 1976, there was a 100 percent increase in the number of people who were openly cohabiting and retaining their individual identities. A reasonable extrapolation of the cases and the statistics suggests that the present number of people involved in nonmarried relationships in the U. S. alone is in the millions.

But there are also compelling economic reasons for the states to step in and protect the expectations of couples living together. It used to be that a woman had to and could depend upon a man to support her. Today there are more women than men and there aren't enough wealthy men to support them all. Women have to be able to take care of themselves or go on the public dole. If a lady forgoes her earning capacity to live with and help a man, it's going to take her time to become an adequate income producer again. The case being made more and more often is that there is no reason why the male who's responsible for her being temporarily unable to provide for herself should not bear the burden of her support until she gets back on her feet. Otherwise, she becomes a public charge. Divorce laws provide the dependent spouse with a re-entry vehicle to society--alimony. And the courts are now saying that cohabitation is a kissing cousin to marriage. That's why they're creating judicial remedies to provide unmarried spouses with the means to sustain themselves until they are economically self-sufficient.

So either you protect yourself or it's a good bet that the courts will start distributing your cash as if you were a philanthropic organization.

How do you protect yourself? Either before you cohabit or early in the union, you must enter into a written contract that covers both of your expectations. (No, you don't have to make her sign a contract before you spend that second joyous night together, but have her sign it if she has lived with you for a month and has moved her belongings in.) Generally, whatever you put in the contract will be enforced by the courts, if necessary.

The agreement may be as simple as a release, on her part, of any and all interests in your income and property acquisitions during the union and of any anticipations that she may have of your support when she leaves. Or it may be as complicated as necessary. You don't need an attorney. Just jot down what property rights each of you thinks are involved, date the paper and sign it. "We are a partnership," dated, signed. Easy.

It's also a good idea to make a new memorandum of your mutual understandings every so often. If your contract is old, either of you can claim that it has been changed by oral agreement and you may be shocked to learn what your partner thinks the new understanding is: Making note of the changes is the only way you can be certain you won't be in for some big surprises.

This may all sound tedious, but you should actually be pleased with the Marvin decision. Its benefits far outweigh its disadvantages. It's true that you may have to contract for your economic survival, but without those tangible written promises, the lady might go into court and prove that you are married.

Married?

You remember that little business trip the two of you took when you signed in at all the hotels as man and wife? Has she been using your charge cards and signing your name with a Mrs. in front? Did you file a joint tax return in order to be in a lower income bracket? Can you say for sure whether or not your neighbors think you're married? Do you have any children living with you? Do they call you Daddy? If you're married and you keep a lady in a condominium you own or in an apartment you rent, is your professional business card on the door or the mailbox? All that's required in the District of Columbia and 13 states (Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas) is a private oral agreement between the two of you that you are married--and you are married. This is known as common-law marriage and if you have ever resided with your lady in one of those states, the wedlock will be recognized and enforced there and everywhere else in the world. It's your word against hers. This legal union may be proved in law by the mere fact of cohabitation coupled with reputation as man and wife. New York lets you marry by private written agreement, but even if that's lost, you're still a husband. Even if you already have a wife, the courts of these states may find that you've entered into a second, bigamous, common-law marriage and may divide your property between your two wives while you spend the next ten years in jail. If you have lived with a woman for three years in New Hampshire, you are married. In Virginia, you will have to prove that you aren't married. And in over half of the states, for many purposes, even if you can prove you aren't married, you will still be treated as if you were. That's not common-law marriage; that's judicial shotgun marriage.

Here's a case you're going to love: Warner vs. Warner--Supreme Court of Idaho (common-law marriage state)--decided in 1955. The man and a married woman started off as simple cohabiters. When she got that final decree of divorce from her legal husband, she told Warner, the man she was living with, she wanted to leave him, too. He said, "Pleeeeease don't go. Live with me as my wife." She did. Nine months later, she split anyway and filed for divorce from him. He went into court and said, "Hey, we were merely cohabiters and because that relationship is illegal, she has no rights." The court said he was trying to deny her property rights. He got it with both barrels.

First the court said that during the initial, illicit period of cohabitation, while she was married to another man, she acquired permanent rights to her lover's property. "A court of equity will protect the property rights of the parties in such cases, either according to their agreement in respect to property or according to principles of equity and justice."

While he was reeling, the court hit him again. It said that he must have made some promises to make her stay with him. Therefore, the court would not allow him to deny the validity of the nine-month marriage. It then granted her a divorce and divided his property a second time. Beware of those glib promises; she may be carrying a tape recorder.

Have her sign that contract tonight. "OK," you say, "what should it include?" (See the sample documents on page 158.) Start with your names. End by dating and signing it. Everything in between is up to you. You shouldn't wait too long after she moves in before you do it, though. If she's been living with you for a while before you contract or when you make changes and she does go to court, the judge may decide that you were involved in a "confidential relationship." This means that she reposed trust and confidence in you and you are obligated to deal openly and fairly with her. A grossly unfair contract dated late in your union would be deemed a result of your "undue influence" and would be set aside. A written release when she moves in is fine. But don't be greedy later. If after you cohabit for a while and you contract to pool your mutual earnings and you are to take everything--she gets nothing, not even reasonable value of her services as perhaps your bookkeeper--that's an extreme example of unfair dealings.

The Mutual Release and the Cohabitation Contract are models only. Do not automatically use them in your situations. The language of each is unfortunately legalistic and you may not fully appreciate all the implications of either without first seeking the advice of an attorney. Both are best used as forms to be followed by you as guidelines in the areas that you want to cover for your own purposes. You should write your own release or cohabitation contract in plain, clear and ordinary language, so that the rights and obligations undertaken by both signators will be easily understood.

On the other hand, couples with a stable relationship who want to be certain that their bargains will be carried out should have their attorney prepare a contract in the form of a business agreement. Make yourselves a partnership, a joint venture or a corporation. Many married couples do exactly that so that they can obtain all the benefits allowed under the Federal tax laws. The tax consequences of such contracts are complicated (for example, you have to have the intention of doing business for a profit), but, generally speaking, you can split income just as married couples do when they file a joint return. You will be entitled to greater deductions from income. Reduce your total personal income. Lower your tax bracket and still take the singles' deductions. If you decide that you want to have all of these advantages, employ a tax attorney to structure your transactions and prepare your contract. He will know what to do.

You may save thousands of dollars. Of course, on paper, your alliance looks very complicated, but nothing in your life has actually changed. It is far easier for two single people than for marrieds to structure their economic lives in order to legally avoid tax liability. The Internal Revenue Service has an obstacle course of regulations designed to prevent wedded spouses from taking many deductions that are readily available to singles acting in alliance.

Courts are used to enforcing business contracts. Cohabitation agreements are new. The former will be readily upheld, while the latter might not be automatically acceptable. Pick the pact that best suits you. But do express your bargains in writing. The new rules of the living-together ball game will be applied to you. Turn them to your advantage.

You will want your contracts or releases to specify that they are governed by California law and that all disputes arising out of them must be resolved through binding arbitration in front of an arbiter instead of a judge. Business contracts normally specify what state's law is to be applied, so that they can get the maximum contractual benefits allowed. You know that California has decided that living-together contracts are valid and binding. You get the maximum benefit by making its law applicable. An arbitration hearing can be set, had and all disputes resolved within a matter of months, instead of the two to five years it normally takes in any civil case. As for costs, an arbitration hearing is like buying at Woolworth's instead of Saks. The arbiter should be given a copy of the Marvin decision, along with the contract.

"If you have agreed that she has any rights to your property, the courts will enforce the contract."

"You may just owe her about $13,000 for each year she was your housemate and general factotum."